Augustus v. Negron

210 A.D.3d 735

178 N.Y.S.3d 132

Justin M. AUGUSTUS, appellant,

v.Michelle D. NEGRON, et al., respondents.

2020–03983

Index No. 511680/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 3, 2022

November 9, 2022

Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Correia King McGinnis & Liferidge, Mineola, NY (Nigeria S. Aljure of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated March 12, 2020. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action, inter alia, to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on February 21, 2016. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated March 12, 2020, the Supreme Court granted the defendants' motion. The plaintiff appeals.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the lumbar region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). The defendants' expert found significant limitations in the range of motion of the lumbar region of the plaintiff's spine and the expert failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Bouzas v. Schroeder, 205 A.D.3d 993, 993–994, 166 N.Y.S.3d 909 ; Kumar v. Water Auth. of Nassau, 200 A.D.3d 668, 668–669, 154 N.Y.S.3d 865 ; McGee v....